Allison Pearson’s Police Ordeal Over ‘Non-Crime Hate Incident’ Shows it’s High Time Free Speech Was Restored

The Telegraph journalist Allison Pearson is the latest prominent target of the ‘non-crime hate incident’ (NCHI) recording machinery. Two police officers knocked at her door on Remembrance Sunday to inform her that she had been “accused of a NCHI which was to do with something she had posted on Twitter a year ago”. But they “were not allowed” to share information about what the journalist wrote that was deemed offensive or who the complainant (“victim”, as they insisted on calling him or her) was. All this sounds quite Kafkaesque. Now, the question is: what is a NCHI? We shall come back to that later.

Consider for a moment the following list of things: Chess, cow’s milk, mathematics, jingle bells, English grammar, punctuality, Paw Patrol (the cartoon) but also Mozart, Gandhi and, last but not least, Mary Poppins. What do all those things, one might naturally wonder, have in common? The answer sounds strange, but it suffices to explain much of recent turbulence in the social arena. These are all things which have recently – often in prestigious media and newspapers – been described as ‘racist’. As such they might get those who for example expect punctuality or rush to correct someone’s grammar in trouble – especially since the new Home Secretary Yvette Cooper signalled her intention to upgrade the monitoring of non-crime hate incidents. But then why should something lawful be recorded – and later on be disclosed in a DBS-check? This brings us to NCHIs.

Following the racist murder of Stephen Lawrence, the Macpherson Inquiry culminated in a report which changed policing by making a series of wide-ranging recommendations regarding ways to detect tensions within communities and to prevent escalation to serious harm. Some of those recommendations were:

• The introduction of perception-based recording. Accordingly, the criterion for determining whether an incident was “racist” should be the perception of the victim or another person (recommendation 12).
• An all-encompassing approach to the term “racist incident” which should “include crimes and non-crimes in policing terms” (recommendation 13).
• The encouragement of the reporting of non-criminal incidents as well as crimes (recommendation 16).

To implement the report’s recommendation, the College of Policing, i.e., a private company under the loose supervision of the Home Office, issued in 2014 a regulatory document called ‘Hate Crime Operational Guidance’ (hereafter: Guidance) which is currently (in its amended form) the institutional engine generating NCHI-records. In view of the Macpherson Report’s gravitational force, it is hardly surprising that the 2014 Guidance defined ‘hate incidents’ as:

Any non-crime incident which is perceived, by the victim or any other person, to be motivated by hostility or prejudice based on a person’s characteristic. The latter can be one of the following: race, religion, sexual orientation, disability, transgender.

As a result, more than 120,000 – a rough estimate – NCHIs were recorded between 2014 and 2019. Even the then (2017) Home Secretary Amber Rudd had an NCHI recorded against her.

Police officers were thus urged by the Guidance not to ignore any (possibly far-fetched and often irrational) claim, but to record it without asking any questions or requiring any evidence. Among other things, police officers had to be careful about how they communicate with “victims” of hate incidents because hate incidents, the Guidance stated “can cause extreme distress to victims and communities”: “Telling a victim that a crime is not a hate crime,” the document adds, “could be deeply offensive to them.” Quite. But what exactly is the meaning of “hate”? There is a fundamental question which must now be addressed: How is ‘hate’ to be defined?

The Guidance, in what is arguably the pivotal point for this discussion, clarified that “for recording purposes, the perception of the victim, or any other person is the defining factor in determining whether an incident is a hate incident, or in recognising the hostility element of a hate crime” (emphasis added). What is more, “the victim does not have to justify or provide evidence of their belief, and police officers or staff should not directly challenge this perception”. It becomes clear that by urging police officers to adopt any use of the term “hateful”, the Guidance did not contribute to tackling hate crime; it merely inflated the term ‘hate’.

The permissive approach outlined above is exacerbated by the elucidation of the word ‘hate’ which according to the Guidance is strongly related with “a high degree of animosity whereas the definition and the legislation it reflects require that the crime must be demonstrated or motivated (wholly or partially) by hostility or prejudice”. The term was further clarified by official CPS Guidance: “In the absence of a precise legal definition of hostility, consideration should be given to ordinary dictionary definitions, which include ill-will, ill-feeling, spite, contempt, prejudice, unfriendliness, antagonism, resentment, and dislike.” We see thus that police officers can classify acts manifesting merely dislike as ‘hateful’.

The Guidance conflated thus two very different things. The first one is the uncritical recording of whatever the complainant reports. As far as the scope of things to be reported is concerned, anything goes. This is a trivial procedural issue insofar, as the police cannot put into doubt what the complainant perceived to be true, e.g. that he or she was abducted by aliens. In other words: the police must record whatever the complainant reports – nothing less than that. At the same time, however, under the 2014 Guidance the police allowed the complainant to dictate also the meaning of important legal terms which ultimately triggers procedural and legal consequences. The problem with that should be obvious already. By uncritically recording an incident as ‘hateful’, the police officer allows the complainant to become the judge in his own case by fixing the meaning of the term ‘hate’. This violates a principle which lies at the heart of our legal system: nemo iudex in causa sua – no one should be made a judge in their own case. Unlike incidents which have to be recorded as reported, the meaning of legal terms is hardly an anything-goes activity. Complainants, gung-ho political activists, let alone those “at the outer margins of rationality“, cannot dictate what ordinary words, let alone important legal terms such as ‘hate’ mean. The police must record whatever the complainant reports – nothing more than that. In other words, everyone is entitled to their own opinion, but no one is entitled to their own semantics. If any use of the term ‘hate’ is equally valid, then the term itself becomes meaningless insofar as it lacks the ability to be explained, understood, learned or communicated. More importantly, it makes the law unforeseeable.

As Baroness Fox of Buckley put it, the Guidance “creates a real possibility of abuse of the system”. The recent case Miller v College of Policing was merely the manifestation of that legal loophole: the police recorded an NCHI against Harry Miller, an ex-police officer, for allegedly transphobic activity. Thereupon a police officer turned up at Miller’s place of work to “check his thinking”. Miller’s challenge to the Guidance was dismissed, with Knowles J. finding that there was no violation of art 10 ECHR (freedom of expression). As the same judge however put it pithily “in this country we have never had a Cheka, a Gestapo or a Stasi”. That was not the end of the story, for the Court of Appeal reversed that ruling. As Dame Victoria Sharp said, the recording of NCHIs “is likely to have a serious ‘chilling effect’ on public debate”.

Legal norms need to be both accessible and foreseeable to prevent arbitrariness in the application of the law. These twin requirements have consistently featured in case-law under Art 10 ECHR. The Guidance alas authorised police officers to cede the linguistic terrain to anyone of the opinion that something is offensive or hateful, e.g. the reality of biological sex. As we saw above, by requiring the police to treat complainants as ‘victims’ and to generate NCHI-records regardless of evidence, the Guidance sanctions any use of the term ‘hateful’. The Guidance, Dame Victoria Sharp remarked, required things like speech “to be categorised and recorded as a ‘hate incident’ when no objective incident has necessarily occurred, apart from the speech itself”. The problem in her Ladyship’s view lies in the unjustifiable crossing of linguistic, jurisprudential and institutional boundaries dictated by, and manifested in, the language used by the Guidance, for example:

• non-crime hate incident instead of report/complaint
• victim instead of complainant
• suspect instead of the person against whom a complaint has been made.

It is precisely that conflation on multiple levels which the Court of Appeal saw as “unfairly stigmatising” the person against whom a complaint is made, generating thus a “chilling effect” vis-à-vis the right to freedom of expression (Art 10 ECHR). The case Miller v. College of Policing was an accident waiting to happen.

Despite the Court of Appeal’s verdict that the Guidance itself and not merely the actions of a zealous police officer violated art 10 ECHR, the Court of Appeal deferred to the College of Policing with respect to the process of redrafting the Guidance. The Court stressed that, whilst the practice of recording NCHIs is not per se unlawful, some “additional safeguards should be put in place so that the incursion into freedom of expression is no more than is strictly necessary”. What is more, the Police, Crime, Sentencing and Courts Act 2022 contained provisions that enable the Home Secretary to issue a statutory code of practice to the police about the recording and retention of personal data relating to NCHIs. NCHIs are thus here to stay.

In what is, in my opinion, the pivotal point for the new Code of Practice, the College of Policing was at pains to stress that “the perception of the complainant alone (including perceptions of offensiveness) is not enough to result in an NCHI including personal data being recorded”. This is apparently a significant departure from the Macpherson Report’s perception-based recording. The College of Policing accepts thus that the complainant’s perception cannot dictate the meaning of important legal terms. What is more, the new Code of Practice exhorts police officers to “utilise judgement and common sense” and to consider whether it is “reasonable to record an incident”, thus introducing objective criteria. As a result, the element of ‘real risk of harm’ presupposes tangible evidence, and reasons that substantiate the said risk. Fanciful conjecture or oversensitive people’s feelings will not suffice.

This is undoubtedly a move in the right direction, especially in view of the rule salient in the Code of Practice which requires recording authorities to opt by default for the anonymised pathway, whenever the latter is sufficient in meeting operational needs, reserving the intrusive recording of personal data for situations in which hostility or prejudice as objectively understood has been exhibited.

One of the many problems however is the process through which the subject will be informed about the recording of an NCHI. The Code states that “if the individual contests the record, they should be invited to provide information to support their request”, which means that the subject can provide explanations only after the record has been made. This is a major shift vis-à-vis procedural rights. Notwithstanding the need for use of objective criteria, an NCHI will be recorded without the subject having an opportunity to be heard. The College of Policing had thus to deal with two horns of a dilemma: either to create a shadow process where the subject can provide explanations before the decision about recording an NCHI is made, or to exclude the subject and allow him only to contest the already existing record against him. Undoubtedly, this puts the burden on the citizen against whom an NCHI was recorded. The College of Policing combined the worst of both worlds insofar as it will still be difficult, time-consuming and expensive for the subject to contest an NCHI-record. The chilling effect of that will not be negligible.

Freedom of expression requires “breathing space“. Transforming police officers into preachers and thus into the long arm of radical ideologues has the opposite effect. It sucks oxygen out of the social arena, catalyses the Twitterisation of the legal system and ushers police officers into hitherto forbidden territory: political discussions on controversial issues, offensive comments, limerick poems and humour. As a result, public consent dissipates and policing (which in turn relies on consent) becomes interested in and antagonistic towards lawful citizens’ daily life. It is high time that U.K. police forces and the College of Policing found their way back to legality, reasonableness and common sense by striking a different balance between freedom of expression and legitimate policing purposes.

As Knowles J. reminded us, “in this country we have never had a Cheka, a Gestapo or a Stasi”. Let’s keep it that way.

Dr. Kyriakos N. Kotsoglou is an Associate Professor of Law and Deputy Director of the Centre for Evidence and Criminal Justice Studies at Northumbria Law School.  A longer version of this article can be found in Criminal Law Review. You can follow his X account here.